By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 6 May 2017
When governments are forced to respond to whistleblower scandals, they tend to do so grudgingly and minimally, whilst making all sorts of inflated propaganda claims.
A case in point is the office of the National Freedom To Speak Up Guardian, a public relations contrivance by the Department of Health.
Shockingly, the National Guardian’s office, its part funder and employer the Care Quality Commission and the Department of Health, have tried to curtail even the little influence it was originally given.
Crucially, the National Guardian’s office started wrongly telling whistleblowers in extremis that it had no remit at all to intervene in individual whistleblowers’ cases.
The National Guardian’s office maintained this position despite being challenged, and then the CQC and DH joined in with this lamentable chorus.
In fact, it was the clear intention of the Freedom To Speak Up Review that:
- The National Guardian’s office was to provide a place where whistleblowers could go if they were let down by their employers
- The National Guardian’s core function was to challenge others to look again at badly handled whistleblower cases and to correct poor practice:
“7.6.17 The INO would in essence fulfil a role at a national level similar to the role played by effective Freedom to Speak Up Guardians locally. They would not take on cases themselves, but could challenge or invite others to look into cases which did not appear to have been handled in line with good practice or where it appeared that a person raising a concern had experienced detriment as a result of raising the concern.” Page 169 Report of the Freedom to Speak Up Review 1
Robert Francis also made it clear that where necessary, the National Guardian should request a direction from the relevant regulator to force employers to correct malpractice.2
In swerving these commitments, David Behan a former DH Director General and the recently ennobled chief executive of the CQC, went so far as to claim that a public consultation by CQC had decided that the National Guardian should not intervene in individual cases:
This was a baseless claim. Contributors to the public consultation in question had suggested that there should be better protection of individual whistleblowers.
Behan was challenged on 12 March 2017. 3
However he dallied in responding, despite being reminded.
I wrote to the Secretary of State on 11 April 2017 providing evidence that Behan’s extraordinary claims about the public consultation were unfounded, and that the DH had been in error to peddle his claims:
On 21 April 2017 Behan finally responded, conceding that the original Freedom To Speak Up recommendation – that the National Guardian should challenge others to look again at mishandled individual cases – would be implemented after all:
HOWEVER, working on the ‘WhackAMole’ model of official resistance to genuine whistleblower protection, the National Guardian has now popped up with her finalised case review process and this remains very flawed. 4
In particular, it still contains the truly ridiculous stipulation that she will not review whistleblower cases unless employers have responded to whistleblowers’ concerns:
“3.1.2 The evidence required to assess referrals
Paragraph 76 of the executive summary states that the purpose of a case review should be to ‘review the handling of concerns where there is reason to believe that there has been failure to follow good practice …’ Therefore cases should only be considered for possible review where there is clear evidence received in the referral that the NHS body has already responded to a concern and has failed to do so appropriately. Where the referral contains little or no such information the case should not be considered for possible case review.
It is expected that the information provided in some referrals will be insufficient to allow the Case Review Manager to decide whether the case meets the criteria advised by the AG. In such cases the NGO should not undertake the gathering of information in the nature of a review to determine whether that referral meets the criteria for case review. They may instead inform the referrer of the need to provide more information.” 4
As ignoring whistleblowers is one of the most common employer ruses, such an arrangement would give solace to the worst NHS employers.
The retention of this exclusion criterion seems unlikely to be a simple mistake, as both Behan and the National Guardian were both made aware of this employer-friendly loophole during the recent consultation on the National Guardian’s process. 5
Nevertheless, I have written again to Behan to clarify whether it is his intention that there should be impunity for employers who ignore whistleblowers, and if not, what action he, Stevens and Mackey as the chief executives of the National Guardian’s funding organisations will take to resolve this mess:
In this latest letter to Behan, I have also asked him to remove a misleading claim in the National Guardian’s case review process guidance that all the twenty ‘Francis principles’ from the Freedom To Speak Up were evidence based. The establishment of flawed Speak Up Guardians was most definitely NOT evidence based. Even the National Guardian herself acknowledged this. 6
Indeed, the ‘model’ trust upon which Francis relied to justify his recommendation for Speak Up Guardians has not proved so angelic after all.
It has been found to have ignored staff’s serious patient safety concerns 7 8, attracting a related CQC warning and rating of ‘Inadequate’ on the ‘Well Led’ domain 9 and it has failed to meet its legal obligations under the Freedom of Information Act as regards these governance failures. It arbitrarily withheld data on staff whistleblowing disclosures to the trust’s ‘Cultural Ambassador’ from a critical period in 2014/2015, and it failed to issue any valid grounds for doing so. A complaint has been made to the ICO.
So much then for Francis’ illusory exemplar of transparency and accountability.
If doctors dished out untested treatments, and made unsubstantiated claims about them as the government has done, they’d be struck off.
Related items about the lack of evidence base for Francis’ Speak Up Guardians:
A) Critique of Francis’ model of trust appointed Guardians, from evidence June 2015 submitted to the Department of Health consultation on implementation of the Freedom To Speak Up Review
B) 25 best and 25 worst NHS trusts for speaking up. Allegedly. 22 March 2017
1 Report by Robert Francis of the Freedom To Speak Up Review, 11 February 2015
2 Report by Robert Francis of the Freedom To Speak Up Review, 11 February 2015
“Principle 15 External Review
There should be an Independent National Officer [National Guardian] resourced jointly by national systems regulators and oversight bodies and authorised by them to carry out the functions described in this report, namely…advise NHS organisations to take appropriate action where they have failed to follow good practice, or advise the relevant systems regulator to make a direction to that effect”
3 Letter to David Behan 12 March 2017
4 National Guardian’s case review process for NHS trusts and foundation trusts. CQC 28 April 2017
5 National Guardian: Letter from Wonderland. Minh Alexander, 20 February 2017
6 Agreed record of a meeting with the National Guardian on 2 February 2017
“MA You know there’s no evidence for any of this (the SUGs)?
HH That’s the challenge, building an evidence base”
7 Leaked NHS report reveals dying patients left alone and in pain. Staff at breaking point. Stoke Sentinel 2 April 2015
8 Leaked NHS dossier: Nurses log concerns over care. 2 April 2015
9 Country’s biggest Health and Social Care Trust ‘requires improvement’. National Health Executive magazine. 13 May 2016